dissenting:
Title 21 O.S.1971 § 565 defines an indirect contempt of court as “wilful disobedience of any process or order lawfully issued or made by court . . . The trial court’s order was issued pursuant to an express duty statutorily imposed by 12 O.S.1975 § 1278 which directs: . . the court shall make such division [of property] between the parties as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof, to pay such sum as may be just and proper to effect a fair and just division thereof.” The power to punish for contempt is expressly conferred by Okla.Const. Art. II § 25, and has been held to have a dual purpose; one, punishment for disrespect of court or its order, and secondly, as a means of compelling performance of a duty required by the court. Burnett v. State, 8 Okl.Cr. 639, 129 P. 1110 (1913). The prohibition against imprisonment for debt found in Okla.Const. Art. II § 13 is not in the least offended by the contempt power conferred under 21 O.S.1971 § 565, because that statute, as noted, limits a punishable indirect civil contempt to the offending party who has “[willfully disobeyed] any process or order lawfully issued”.
Properly considered in its historical context, the fact that the contemnor could have complied, had the means by which to comply with the court order, and fails to do so at once proves a willful disobedience necessary to the statutory definition of contempt and removes it from the realm of the constitutional prohibition against imprisonment for debt.
Thus, the majority errs in failing to recognize the inherent power of the court to punish for contempt and at once prohibits the contempt trial which is the only proper forum for determination of the two relevant facts necessary to establish that contempt, which are: Was the order clear enough to give the party charged reasonable notice of the order’s intent, and secondly, was the disobedience thereof willful in that the charged party could have, but refused, to comply.
I feel the majority’s rationale is as applicable to 12 O.S.1971 § 850 as it is to the instant proceeding, which fact is an indicia of the magnitude of the error promulgated here, for as stated in the dawning days of our Republic in Respublica v. Oswald, 1 Dall. 319, 329, 1 L.Ed. 155, 160 (1788), by Chief Justice McKean, cited in part in Smith v. Speed, 11 Okl. 95, 66 P. 511 at 515:
“. . . Some doubts were suggested, whether even a contempt of the court was punishable by attachment; but not only my brethren and myself, but likewise all the Judges of England, think, that without this power - no court could possibly exist; — nay, that no contempt could indeed, be committed against us, we should be so truly contemptible. The law upon the subject is of immemorial antiquity; and there is not any period when it can be said to have ceased, or discontinued . . .
I therefore DISSENT, and would refuse to assume original jurisdiction in this matter.
I am authorized to state that BARNES, SIMMS and DOOLIN, J., concur in the views expressed herein.